Motion for Sanctions – Page 107 – Electronic Discovery Law

Lohmann & Rauscher, Inc. v. YKK (U.S.A.), Inc., 2007 WL 677726 (D. Kan. Mar. 2, 2007)

Dec 01 2007

Key Insight: Court denied discovery motion because counsel’s exchange of emails did not satisfy Rule 37 meet and confer requirement; notwithstanding such denial, court found that defense counsel’s email attaching additional documents and advising that there were no other responsive documents did not satisfy the letter or spirit of court’s prior discovery order or the federal rules; court ordered defendant to prepare written response in accordance with Rule 34(b) and pay sanctions of $500 to plaintiff

Nature of Case: Breach of contract

Electronic Data Involved: Email

Synergy Tech & Design Inc. v. Terry, 2007 WL 1288464 (N.D. Cal. May 2, 2007)

Dec 01 2007

Key Insight: Where defendants produced only 82 pages of emails without their attachments, and the record indicated that other responsive material existed, including the email attachments and data being mined by forensic expert hired by defendant, court found that defendants had not fully complied with prior discovery order, imposed monetary sanctions, and ordered defendant to produce additional documents and/or provide declarations detailing their specific efforts to locate responsive material

Nature of Case: Patent litigation

Electronic Data Involved: Email attachments and other data obtained through forensic means

Perez-Farias v. Global Horizons, Inc., 2007 WL 2327073 (E.D. Wash. Aug. 10, 2007)

Dec 01 2007

Key Insight: Where defendants failed to produce email, failed to properly preserve email, and had not complied with orders to timely produce discovery, nor paid plaintiffs’ costs of bringing discovery motions as ordered nor paid sanctions to court as directed, and repeatedly failed to follow local rules with respect to timely and properly filing documents, court granted plaintiff’s motion for case dispositive sanctions; trial would be on the issue of damages only, and only plaintiff’s evidence would be admitted given defendants’ failure to file witness or exhibit lists

Nature of Case: Employment discrimination

Electronic Data Involved: Email

Willbros Eng’rs, Inc. v. Mastec N. Am., Inc., 2007 WL 2891500 (N.D. Okla. Sept. 28, 2007)

Dec 01 2007

Key Insight: Where plaintiff?s attorneys? repeated inaccurate representations that all responsive documents had been produced demonstrated gross negligence but not intentional bad faith, and belated production necessitated re-opening discovery and continuing trial date, court concluded that requested sanction of dismissal of plaintiff’s claims and default judgment against plaintiff on cross-claims was too harsh and that lesser (monetary) sanctions were appropriate

Nature of Case: Construction litigation

Electronic Data Involved: Computer files relating to $100 million construction project, computer index, audiotapes of meetings

In re Krause, 367 B.R. 740 (Bankr. D. Kan. 2007)

Dec 01 2007

Key Insight: As sanction for debtor?s deliberate and intentional use of a wiping software program on computers after learning that court was ordering their production, and because of severe prejudice to trustee and government, court entered partial default judgment against debtor and ordered debtor to turn over all computers, portable storage devices and any backups within 10 days of order, and to execute any waivers or authorizations necessary for trustee and government to obtain assorted financial records; court further ordered that, if debtor did not comply within 10 days, bench warrant would issue for debtor?s apprehension and debtor would be incarcerated until he purged himself of contempt and complied with orders

Nature of Case: Government brought adversary proceeding against Chapter 7 debtor to except his tax debt from discharge and declare various entities his alter ego

Electronic Data Involved: Hard drives, email

Giant Screen Sports LLC v. Sky High Entm’t, 2007 WL 627607 (N.D. Ill. Feb. 27, 2007)

Dec 01 2007

Key Insight: Court entered default judgment against defendants and dismissed their counterclaims with prejudice as sanction for repeated discovery violations and blatent disregard of court’s orders; among other things, defendants had failed to produce any emails and discarded individual defendant’s computer that was subject to inspection request

Nature of Case: Breach of contract, fraud, and other claims

Electronic Data Involved: Email

Hill v. Eddie Bauer, 2007 WL 1309536 (C.D. Cal. Mar. 29, 2007)

Dec 01 2007

Key Insight: Ruling on plaintiff’s motion to compel, court expressed dismay that parties had not addressed discovery of ESI given FRCP e-discovery amendments and fact that much of the evidence was in electronic format; court ordered parties to personally meet and confer to discuss a discovery plan addressing, among other things, electronic discovery, modifications to the Federal Rules, depositions, and the like, and lodge the proposed discovery plan by certain date

Nature of Case: Individual and class action alleging labor abuses

Electronic Data Involved: Sales information, employee information

Bakhtiari v. Lutz, 2007 WL 3377215 (8th Cir. Nov. 15, 2007)

Dec 01 2007

Key Insight: District court did not abuse its discretion in refusing to impose spoliation sanctions against defendant university for deletion of former teaching assistant’s email account, where university backed-up the contents of the account onto two CDs before deleting it, and the deletion occurred before the lawsuit was filed

Nature of Case: Employment discrimination, civil rights

Electronic Data Involved: Email

Wingnut Films, Ltd. v. Katja Motion Pictures Corp., 2007 WL 2758571 (C.D. Cal. Sept. 18, 2007)

Dec 01 2007

Key Insight: Where defendant did not conduct a reasonably diligent search for numerous categories of documents that court ordered be produced, did not conduct a reasonably diligent search for ESI, and did not suspend its document destruction policy or otherwise take adequate steps to preserve documents, among other forms of relief court ordered defendant to retain at its own expense an outside vendor, to be jointly selected by the parties, to collect responsive ESI; court further indicated it would impose $125,000 in sanctions representing reasonable amount of attorneys’ fees expended by plaintiff as result of defendant’s discovery misconduct

Nature of Case: Licensing and distribution claims, breach of fiduciary duty, unfair competition, fraud

Electronic Data Involved: Email and other electronic documents

In re Kmart, 371 B.R. 823 (Bankr. N.D. Ill. 2007)

Dec 01 2007

Key Insight: Kmart’s failure to implement litigation hold and “woefully insufficient” efforts to retrieve responsive information did not warrant spoliation sanctions on present record and would be denied without prejudice to creditor’s renewing it in the future should evidence support it; court awarded creditor portion of attorneys’ fees and costs and ordered Kmart, to the extent it had not already done so, to perform a systematic search of all files on certain drives and produce responsive material to counsel within 14 days of order

Nature of Case: Creditor asserted breach of contract and other claims against Chapter 11 debtor in possession

Electronic Data Involved: Email and other ESI

Tag:Motion for Sanctions